Five puzzles about occupation and settlements: questions for Geneva

Today, Switzerland convened a conference of State Parties to the Fourth Geneva Convention, to discuss the law of occupation as it pertains to Israel. There have been just a couple of previous occasions when Geneva convened the signatories of its eponymous treaty, and every single one has been about Israel. (Jerusalem, Washington, Ottawa, and Canberra have announced they will snub the confab.)

Yet there is nothing wrong with an international conference to discuss the Fourth Geneva Convention, and to attempt to better understand its requirements as they apply in particular situations. Art. 49(6)'s prohibition of "deportation and transfer" into occupied territory could certainly do with elucidation. (The "deport or transfer" ban is commonly referred to as "settlement building.")

Indeed, an examination of movement into occupied territory in Georgia, Ukraine, Azerbaijan, Western Sahara, and Cyprus would be both timely and instructive. Needless to say, this is not what the state parties will be discussing. They are, sadly, not interested in the Geneva Conventions, but only their possible use against Israel. But if the State Parties were to want an interesting agenda, here are some questions they might ask.

1. The first relates to the ICRC's own definition of occupation (a precondition to the applicability of the "deport or transfer" norm). The state parties apparently regard Israel as occupying Gaza, to say nothing of all of the West Bank, despite the removal of Israeli troops from those areas and the existence of an independent Palestinian administration there. However, occupation in all other contexts requires the occupying power to displace and actually function as the governing authority, conditions that do not apply in Gaza and large parts of the West Bank (Area A).

Indeed, an ICRC manual excludes areas like Gaza:

Occupation ceases when the occupying forces are driven out of or evacuate the territory. (emphasis in the original)

How Israel's occupation squares with the ICRC's own definition of the term would be a useful subject for the state parties.

2. Also on the subject of the existence of occupation, it is curious why no one ever discusses Cession of Vessels and Tugs for Navigation on the Danube, a decision cited not infrequently for other propositions, but also directly relevant to the existence of a belligerent occupation. (The 1921 international law case was interpreting The Hague Convention's provisions on the scope of occupation, but the Geneva Conventions preserve those rules.) The arbitrators ruled that the military seizure of territory that was not, at the time, under any sovereignty (because of the collapse of the Austro-Hungarian empire) did not amount to occupation within the meaning of the Hague Conventions. It would be nice to know why the State Parties think the decision is so obviously wrong or irrelevant that no one even bothers to distinguish it away in discussions of "The Occupation."

Then there are some fun puzzlers about "settlements." If it is true that the Geneva Convention's provisions on occupation apply to all territory taken in war, regardless of prior sovereign status, several interesting anomalies arise. (This is just a small sampling of paradoxes, inconsistencies and incoherences that arise when attempting to apply the "rules" of Geneva.)

3. Both North and South Korea should be seen as guilty of conquest and settlements, as both took territory on the other side of the 38th parallel at the conclusion of the Korean War. This territory was not previously under their control, and the international community does not recognize either Korea as the legitimate sovereign of the entire peninsula, which they both claim. Thus the North Korean presence south the 38th parallel should be an "occupation," and vice versa. For example, the city of Kaesong was seized by the North and remained in its hands under the armistice agreement. Yet no one seems to regard this as occupation, or construction there as settlement building.

4. The U.S. and most other countries do not recognize Israeli sovereignty over even western Jerusalem, which came under Israeli control in the 1948-49 War of Independence, or al-Nakba (The Catastrophe). Indeed, at oral arguments in Zivotofsky v. Kerry, the Jerusalem Passport case, the Solicitor General compared Israel's position in western Jerusalem to that of Russia's in Crimea and eastern Ukraine. (So Putin was not the first to compare Crimea to Jerusalem.)

Of course, Crimea is under belligerent occupation. This means that all construction and migration in Western Jerusalem should be, by the definition of these terms often applied to eastern Jerusalem, illegal settlement activity. Of course, no one has ever regarded it as such, illustrating the incoherence of the formulation of the norm.

5. A recent Reuters story highlighted how Israeli Arabs are moving "across the Green Line" into homes in eastern Jerusalem. The prohibition on "settlers" applies to the entire "civilian population" of the occupier, and makes no exceptions based ethnicity. Yet in the context of Israel, "settlement activity" by Israelis of non-Jewish ethnicity does not meet with international condemnation. Conversely, the movement of new immigrants from third-countries does meet with accusations of illegality in the Israeli context, even though they do not seem to be part of the relevant "civilian population." A further clarification of this issue would be very helpful to understand a variety of settlement related questions that no one is asking, from Russian liability for settlements in Georgia, to whether British and other European residents of Northern Cyprus can be considered "illegal settlers."

A key virtue of a legal system is the consistency or coherence of its rules across multiple disparate cases. Special pleading, invocations of sui generis status, and so forth, make the law less law like. With that in mind, I will be happy to hear solutions to these riddles, ideally ones that do not fall back on the "spirit" of the Geneva Conventions.